Citation Nr: 9903455
Decision Date: 02/05/99 Archive Date: 02/10/99
DOCKET NO. 94-18 589 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to service connection for the cause of the
veteran's death due to Agent Orange exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. Lemoine, Counsel
INTRODUCTION
The veteran had active military service from June 1966 to
June 1968. The veteran died on December [redacted], 1990.
The appellant is his widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1991 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO),
which denied the appellant's claim seeking entitlement to
service connection for the cause of the veteran's death on a
direct basis. The appellant submitted a notice of
disagreement with that rating decision in April 1991. She
was provided with a statement of the case in May 1991 and her
substantive appeal was received in June 1991. Within that
substantive appeal, the appellant also claimed that the
veteran's death was due to Agent Orange exposure. That
inextricably intertwined issue was also subsequently
developed for appeal. It was denied by an April 1994 rating
decision. A statement from the appellant's representative,
received in July 1994, constituted a timely notice of
disagreement. The appellant was provided with a statement of
the case on the issue in September 1996 and another statement
from her representative, in December 1996, constituted a
timely substantive appeal.
The case was twice previously before the Board, initially in
May 1996 and again in August 1997, and on each occasion it
was remanded to the RO for additional evidentiary development
and in order to ensure due process for the appellant.
Following compliance with the Board's directives by the RO,
the case is now returned to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant and her representative contend, in essence,
that service connection is warranted for the cause of the
veteran's death. The appellant has argued that the veteran
was exposed to Agent Orange during his service in Vietnam and
she believes this was the cause his fatal chronic leukemia,
that resulted in his death in 1990. She has reported that
the veteran was in receipt of benefits from the Agent Orange
Veteran Payment Program, and argues that this supports her
contentions. In the alternative, it is argued that symptoms
of the veteran's chronic leukemia were present shortly after
service, and therefore, service connection is warranted on a
direct basis. The appellant's representative has argued, in
his October 1998 informal hearing presentation, that if the
appellant's claim is not granted, then an opinion should be
sought from an independent medical expert to opine on the
relationship of the veteran's death to his Agent Orange
exposure, or in the alternative, the case should be remanded
in order to seek additional medical evidence.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
the pertinent evidence and material of record in the
veteran's claims file. Based on its review of the relevant
evidence in this matter, and for the following reasons and
bases, it is the decision of the Board that the appellant has
not presented evidence sufficient to justify a belief by a
fair and impartial individual that she has presented a well-
grounded claim of service connection for cause of the
veteran's death, as either due to Agent Orange exposure or on
a direct basis.
FINDINGS OF FACT
1. The veteran's certificate of death indicates he died on
December [redacted], 1990, at age 45, and the certified cause
of death was chronic leukemia.
2. The veteran had active service in Republic of Vietnam
during the Vietnam era.
3. At the time of his death, the veteran is not shown to
have had a disability recognized in VA regulations as
etiologically related to exposure to herbicide agents used in
Vietnam.
4. There is no medical evidence to show that the veteran's
chronic leukemia was the result of exposure to Agent Orange
in service.
5. The appellant has not submitted competent evidence
sufficient to justify a belief by a fair and impartial
individual that her claim of service connection for the cause
of the veteran's death due to exposure to Agent Orange is
plausible.
6. There is no medical evidence that the veteran was treated
for chronic leukemia during his service or within one year of
service.
7. The appellant has not submitted competent evidence
sufficient to justify a belief by a fair and impartial
individual that her claim of service connection for the cause
of the veteran's death on a direct basis is plausible.
CONCLUSION OF LAW
The appellant has not presented a well-grounded claim of
service connection for the cause of the veteran's death,
either on a direct basis or as due to Agent Orange exposure.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107(a),
7104 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.312 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
A review of the veteran's DD Forms 214 discloses that he
served on active duty in the Republic of Vietnam during the
Vietnam era. However, the service medical records are
entirely negative for any complaints, treatment or diagnosis
pertaining to chronic leukemia. The veteran underwent a
negative pre-enlistment examination in September 1965, and
separation examination in April 1968 was unremarkable,
Service medical records contain no pertinent complaints or
findings.
In July 1971, approximately three years after the veteran's
separation from service, the veteran submitted a claim
seeking service connection for a back disorder. In relation
to that claimed back disorder, the veteran underwent a VA
examination in October 1971, and again in June 1972. At that
time, the veteran again had no pertinent complaints and the
examinations were negative for any findings pertaining to
chronic leukemia.
The veteran's certificate of death indicates he died on
December [redacted], 1990, at the age of 45. The immediate
cause of death was listed as chronic leukemia. It was also
stated that the cause of death had its onset approximately
six years previously.
The appellant's claim seeking direct service connection for
the veteran's death was received in February 1991. In her
June 1991 substantive appeal, she argued that the veteran's
death was due to his Agent Orange exposure. She further
argued that he was receiving payment from the Agent Orange
Veteran Payment Program as a result of his exposure.
The appellant submitted, in August 1991, a number of private
medical records from the Clearfield Hospital, the Center
Community Hospital, Dr. Covella, Dr. Hipolito, and Dr. Dixon.
Among these records, it was noted that the veteran was
treated at Clearfield Hospital as early as 1977 and diagnosed
with severe polycythemia vera. Subsequent records throughout
the 1980s indicate myeloproliferative syndrome consistent
with polycythemia vera. According to a July 1988 report from
Dr., Dixon, the veteran was first referred to him by Dr.
Hipolito in September 1980. The veteran presented with a
many year history of progressive plethora, cramps in the
lower extremities, dyspnea on exertion, and progressive
fatigue with headache. Dr. Dixon further indicated that
throughout 1982, the veteran required varying doses of
chemotherapy in order to maintain hematologic normally, but
his disease remained stable until January 1984, when his
platelet count sky-rocketed and his spleen markedly enlarged.
In 1984, he underwent a splenectomy. He continued to undergo
intermittent chemotherapy in 1985 and 1986. In 1986, the
veteran's picture was consistent with early transformation to
a smoldering or preleukemic state. He was then diagnosed
with erythrol-leukemia in transition in the face of marked
myeloproliferative disorder. Dr. Dixon noted that as of
August 1987, the veteran was diagnosed with acute leukemia
and his prognosis was considered extremely limited. A
December 1990 discharge summary from the Clearfield Hospital
indicated that the veteran had been progressively
deteriorating and all treatment had failed to produce any
substantial improvement. Although admitted for supportive
measures his disease was considered essentially terminal at
time of discharge.
Pursuant to the Board's May 1996 Remand, the appellant
submitted additional private medical records in June 1996.
These records of treatment spanned from 1977 until the
veteran's death in 1990. However, they also contained
numerous duplicates of the records previously submitted in
August 1991. The newly submitted records primarily revealed
hematologic laboratory results.
Received in January 1997 were the veteran's VA medical
records. These indicated that the veteran had undergone a VA
Agent Orange examination in January 1985. At that time, the
veteran gave a history of myeloproliferative disorder. He
stated this had first been diagnosed in 1977, some ten years
after his service in Vietnam. The examination was negative
for any findings of any disorder etiologically related to
Agent Orange exposure. The remainder of the veteran's VA
medical records indicated that he received outpatient
treatment from March 1988 to March 1990, but these records
were negative for any additional pertinent information.
Following the Board's second remand, in August 1997, the
appellant was requested to provide information of any
additional pertinent treatment records, VA or private. Her
representative indicated, in an October 1997 response, that
there were no additional treatment records to be obtained and
requested that the appeal proceed forward.
II. Analysis
The threshold question which the Board must address in this
case is whether the appellant has presented well-grounded
claims. A well-grounded claim is one which is plausible. If
she has not, the claims must fail and there is no further
duty to assist in the development of the claims. 38 U.S.C.A.
§ 5107; Murphy v. Derwinski,
1 Vet. App. 78 (1990). A well-grounded claim requires more
than an allegation; the claimant must submit supporting
evidence. Furthermore, the evidence must justify a belief by
a fair and impartial individual that the claim is plausible.
Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Grivois v.
Brown, 6 Vet. App. 136 (1994). This requirement has been
reaffirmed by the United States Court of Appeals for the
Federal Circuit, in its decision in Epps v. Gober, 126 F.3d
1464 (Fed. Cir. 1997), cert. denied, Epps v. West, 118 S.Ct.
2348 (1998). That decision upheld the earlier decision of
the United States Court of Veterans Appeals which made clear
that it would be error for the Board to proceed to the merits
of a claim which is not well grounded. Epps v. Brown, 9 Vet.
App. 341 (1996).
Evidentiary assertions by the appellant must be accepted as
true for the purposes of determining whether a claim is well-
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993).
To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. For
a service-connected disability to be the cause of death, it
must singly or with some other condition be the immediate or
underlying cause, or be etiologically related. For a
service-connected disability to constitute a contributory
cause, it is not sufficient to show that it causally shared
in producing death, but rather it must be shown that there
was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R.
§ 3.312.
The Board notes that the appellant has pursued two theories
of service connection. First, it has been contended that the
veteran's chronic leukemia began within service or within the
one-year presumptive period following his service.
38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The
appellant's other contention is that the veteran's chronic
leukemia is causally related to his exposure to Agent Orange
during his service.
Regarding first the issue of Agent Orange exposure, the Board
notes that a chronic, tropical, or prisoner-of-war related
disease, or a disease associated with exposure to certain
herbicide agents, listed in 38 C.F.R. § 3.309 will be
considered to have been incurred in service under the
circumstances outlined in this section even though there is
no evidence of such disease during the period of service. No
condition other than one listed in 38 C.F.R. § 3.309(a) will
be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113,
1116; 38 C.F.R. § 3.307(a), (d).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era, and
has a disease listed at 38 C.F.R. § 3.309(e), shall be
presumed to have been exposed during such service to a
herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. 38 C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 U.S.C.A.
§ 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though
there is no record of such disease during service, provided
further that the rebuttable presumption provisions of
38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied:
chloracne or other acneform diseases consistent with
chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's
lymphoma, acute and subacute peripheral neuropathy, porphyria
cutanea tarda, prostate cancer, respiratory cancers (cancer
of the lung, bronchus, larynx, or trachea) and soft-tissue
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, and acute
and subacute peripheral neuropathy shall have become manifest
to a degree of 10 percent or more within a year, and
respiratory cancers within 30 years, after the last date on
which the veteran was exposed to an herbicide agent during
active military, naval, or air service. 38 C.F.R.
§ 3.307(a)(6)(ii).
The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed.Reg. 341-346
(1994). See also 61 Fed.Reg. 57586-57589 (1996).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that the
Veteran's Dioxin and Radiation Exposure Compensation
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-
29 (1984) does not preclude a veteran from establishing
service connection with proof of actual direct causation.
Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); see
also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997),
aff'g Ramey v. Brown, 9 Vet. App. 40 (1996). However, where
the issue involves a question of medical diagnosis or
causation as presented here, medical evidence which indicates
that the claim is plausible is required to set forth a well-
grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93
(1993)
The Board has carefully considered the contention that the
veteran's chronic leukemia was caused by Agent Orange
exposure. However, inasmuch as VA regulations do not reflect
that an association has been found between the development of
chronic leukemia and exposure to herbicide agents, in that no
specific determination has been made by the Secretary linking
this disorder with herbicide exposure, a presumption of
service connection in this case is not warranted based on the
medical evidence of record. 38 U.S.C.A. § 1116; 38 C.F.R.
§§ 3.307(a), 3.309(e); 59 Fed.Reg. 341-346 (1994).
In addition, the appellant has not submitted any medical
evidence in support of her contentions that the veteran's
herbicide exposure during service actually caused or
contributed to his death. Although the veteran underwent a
VA examination in 1985 for Agent Orange exposure, the
examination was negative for any findings of residuals of
Agent Orange exposure. Likewise, although there are
extensive medical records detailing the treatment of the
veteran's chronic leukemia within the claims file, these
records are likewise negative for any findings of residuals
of Agent Orange exposure. The appellant has simply made a
contention that this is the case, with no medical evidence in
support of her argument.
We have carefully considered the appellant's arguments and it
is clear that she is sincere in her belief that the veteran's
fatal chronic leukemia was due to his exposure to Agent
Orange. However, inasmuch as the appellant is offering her
own medical opinion, we would note that the record does not
indicate that she has any medical expertise to so opine. See
Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay
testimony . . . is not competent to establish, and therefore
not probative of, a medical nexus"); Routen v. Brown, 10
Vet. App. 183, 186 (1997) ("a layperson is generally not
capable of opining on matters requiring medical knowledge"),
aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998). See
also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v.
Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet.
App. 91 (1993).
As for the appellant's contention that the veteran's receipt
of payments from the Agent Orange Veteran Payment Program
support the claim, the Board notes that the veteran's
acceptance in the Agent Orange Veteran Payment Program does
not address the medical conditions at issue and does not
serve to make the claim well grounded. Receipt of
compensation under the Agent Orange Veteran Payment Program,
which is a nongovernmental, nonprofit entity, is based upon
standards very different than those required to establish
service connection. See Brock v. Brown, 10 Vet. App. 155
(1997); Viglas v. Brown, 7 Vet. App. 1 (1994).
In conclusion, as the veteran's chronic leukemia is not one
of the diseases entitled to a presumption of service
connection based upon exposure to Agent Orange, and as the
appellant has not submitted any other medical evidence which
demonstrates a causal link between the veteran's herbicide
exposure in service and his subsequent development of chronic
leukemia, the Board is of the opinion that the appellant has
not presented a well-grounded claim, in regards to the
veteran's death being due to Agent Orange exposure.
38 U.S.C.A. § 5107(a).
The Board must next address the appellant's second
contention, namely that the veteran's chronic leukemia arose
within service or within one year of his service. As regards
this claim, the Board notes that the medical record indicates
that the veteran's polycythemia vera was first diagnosed in
1977, approximately ten years after his service.
Furthermore, by the veteran's own history, provided by him on
Agent Orange examination in 1985, he reported his blood
disorder first appeared in about 1977. Although this
disorder subsequently transformed into his ultimately fatal
chronic leukemia, there is absolutely no medical evidence of
record to indicate that this disorder was present within
service, within one year of service, or was in any other way
related to the veteran's service. Furthermore, the fact that
the veteran submitted an unrelated claim in 1971 and
underwent VA examinations in 1971 and 1972, without any
pertinent complaints, is certainly significant evidence that
tends to rebut the appellant's current contentions that his
chronic leukemia disorder arose shortly after service.
Accordingly, the Board concludes there is no competent
medical evidence of record that the veteran's chronic
leukemia began in service, or within one year of service.
Nor is there competent medical evidence of any other nexus
between the veteran's chronic leukemia and his service.
While the Board sympathizes with the appellant's contentions,
nonetheless, the Board must once again note that inasmuch as
the appellant is offering her own medical opinion, the record
does not indicate that she has any medical expertise to so
opine. See Bostain; Routen; Espiritu; Moray; and Grottveit,
supra.
Finally, the Board is satisfied that the RO took all
reasonable steps to properly develop the appellant's claim.
The appellant has not informed VA of the existence of any
available evidence that would render the claims well
grounded. She has not contended that any further relevant
records exist. The Board therefore finds that no further
action is warranted relative to the development of the
appellant's claims, based upon the information currently of
record. Hence, the Board concludes that there are no
additional pertinent records of treatment which are not in
the claims folder and would be available. See Counts v.
Brown, 6 Vet. App. 473, 477 (1994). In this regard, the
Board notes that the case has been twice previously remanded
and the appellant has been provided multiple opportunities to
submit all pertinent medical evidence. Most recently, in
October 1997, she indicated through her representative that
there were no additional medical records to submit.
Accordingly, the Board finds that there is no basis for a
remand to search for non-existent treatment records.
Furthermore, the Board has considered the requests of the
appellant's representative, in his November 1998 informal
hearing presentation, within which he requested a remand for
further development. However, the Board notes that there is
no additional development to be performed and another remand
would only result in an unnecessary delay to the appellant.
The Board has also considered the request of the appellant's
representative for an independent medical expert to evaluate
the claim. However, the Board notes that while the law
authorizes procurement of an advisory medical opinion from
one or more medical experts who are not VA employees when
warranted by the medical complexity or controversy involved
in a pending claim, see 38 U.S.C.A. §§ 5109, 7109; 38 C.F.R.
§§ 3.328, 20.901, the need for such an action is not shown in
the present matter. As the appellant's claims are not well
grounded, the evidence of record cannot be said to present a
question of medical complexity or controversy warranting such
a step.
Therefore, under the circumstances of this case, the
appellant's application is not incomplete, and the VA has not
been put on notice that other relevant evidence exists, or
could be obtained, which, if true, would make the claims
"plausible." Robinette v. Brown, 8 Vet. App. 69, 80
(1995); see also Epps v. Brown, supra. Moreover, VA is not
required to notify the appellant of particular evidence
needed to make an application complete if the Department has
not reasonably had notice of the existence of such evidence.
McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997).
Consequently, a remand for additional evidentiary development
is not warranted under the facts of this case.
ORDER
Service connection for cause of the veteran's death, claimed
as either due to Agent Orange exposure or on a direct basis,
is denied, as the claims are not well-grounded.
STEVEN L. COHN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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